Simpson v. . Brown

This is a motion to set aside a judgment for excusable neglect, under The Code, section 274.

Facts: The summons was served and returned to January Term, 1894, when the defendant Fowler employed an attorney to attend to the case. The attorney died on 18 March, 1894, having failed to enter an appearance. At August Term, 1894, the defendant was present and knew his attorney was dead, but employed no other attorney. (483) One month before January Term, 1895, the case was put on the calendar and was set for trial on 4 January, 1895, and the calendar was published in two weekly newspapers at Monroe for one month. The defendant lived 19 miles from the courthouse, directly on the railroad running daily trains. At January Term, 1895, a judgment was rendered, the defendant not attending and having employed no attorney. On 13 August, 1895, the defendant filed an affidavit and made a motion to have the judgment set aside.

This was a plain case of inexcusable negligence. Kivett v. Wynne,89 N.C. 39. The numerous decisions upon inexcusable negligence under this section are found in Clark's Code, pp. 231, 232, 233, 234.

Affirmed.

Cited: Cahoon v. Brinkley, 176 N.C. 8.

(484)